From a post in hrdaily:
Strong informal processes can prevent many bullying complaints from escalating into full-blown claims and legal action, but only if employers avoid common mistakes with them, says employment lawyer Jordan Tilse.
Best-practice bullying management is to have both an informal and a formal complaints resolution process, she tells an HR Daily.
"The role and challenge of HR practitioners is to get the balance right between responding to genuine incidents of bullying and ensuring that the workplace doesn't become a breeding ground for airing baseless grievances."
At the early, informal stage of a bullying complaint, it is important for HR to act as a gatekeeper, says Tilse, a senior associate at Minter Ellison.
Given that the word "bullying" is bandied around a lot, HR should, where appropriate, "de-label" conduct that is the subject of complaints, she says.
"For example you should, at the informal stage, be saying to people, 'tell me what your complaint is' before obtaining the buy-in of the complainant about whether the complaint is appropriately framed as a bullying complaint.
"The goal is to minimise legal risks and respond to bullying while ensuring that the workforce is not overly sensitised, and that managers can manage effectively without being paralysed by a fear of bullying claims."
Tilse says that in an informal complaint process, HR should:
- explain to the complainant the informal process is about resolution, not proof or substantiation of the complaint;
- explain to the complainant what the options are for dealing with the issue if they are open to pursuing the complaint informally – for example, addressing the matter directly with the bully, or participating in mediation;
- bear in mind when informal action is inappropriate – for example when the claims are serious or the person is fearful;
- explain (and document) that a formal complaint can be made by the person at any time and that seeking to deal with the matter informally is not a barrier to later dealing with the complaint in a formal way;
- not make promises about confidentiality – this might not be possible; and
- make clear at the early stage that disciplinary action will flow in cases where employees pursue baseless grievances.
If the complainant has agreed to informal resolution, HR should confirm this in writing with them.
The wording can be along the lines of: "I confirm we met yesterday – we discussed options for resolution of this issue and you indicated that you had decided to resolve complaint by XYZ and you are happy with the outcome. If the matter hasn't resolved you can make a formal complaint at any time, and I am available to discuss the matter".
HR should then schedule a follow-up, and note its outcome.
The best way to protect a business from bullying claims is to ensure its policies and procedures are in order, but employers make some common mistakes in this area, Tilse says.
The first of these is requiring complaints to be made in writing.
"A lot of policies say that a person's complaint must be documented. Written complaints are encouraged and assistance should be given to record, but don't make the mistake of saying that there is no complaint if it is not put in writing."
Next, employers should ensure they nominate more than one person as the contact for complaints, and regularly review the list – this is necessary in case the contact person is the perpetrator of bullying, but Tilse also knows of cases where the bullying contact was on leave or had left the business, leaving aggrieved employees confused about where to turn.
A further mistake is to "over deliver" when promising natural justice.
"Don't go overboard, don't promise too much, because investigations can be extraordinarily difficult – don't give timeframes."
And finally, promises about confidentiality should be avoided.
"From a procedural fairness perspective, this may not be possible. Also explain that there are consequences for making an unsubstantiated complaint.
"If your policy is too prescriptive, think about amending it."
Warning signs of bullying
Tilse tells the webcast that certain workplace analytics, if monitored, can help employers identify where bullying might be occurring and minimise damage by addressing it early.
HR professionals should keep an eye on records of sick leave, transfer requests and resignations, for example.
"I am always amazed at how often I will say to clients, 'what is the turnover like around this person accused of bullying?' and it will be phenomenal," she says.
Warning signs can also appear in:
- opinion surveys – including exit interviews, employee surveys and 360-degree reviews;
- workers' compensation claims – is there a pattern in the department or section in which claims originate, or in the subject of the claims? and
- grievances – "Managers and supervisors should be constantly on the look out for whether there are patterns of grievances among people and departments", Tilse says.
Learn about Barringtons Online Prevention of Workplace Bullying Training here.
Blayne Webb, Director, Barringtons